09-2109-cv
    Tehan v. Sacred Heart University



                            UNITED STATES COURT OF APPEALS
                                FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER
RULINGS BY SUM M ARY ORDER DO NOT HAVE PRECED ENTIAL EFFECT. CITATION TO A SUM M ARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERM ITTED AND IS GOVERNED BY FEDERAL RULE
OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUM M ARY
ORDER IN A DOCUM ENT FILED W ITH THIS COURT, A PARTY M UST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (W ITH THE NOTATION “SUM M ARY ORDER”). A PARTY
CITING A SUM M ARY ORDER M UST SERVE A CO PY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.

           At a stated term of the United States Court of Appeals for the Second Circuit, held
    at the Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of
    New York, on the 20th day of July, two thousand ten.

    PRESENT:
                PIERRE N. LEVAL,
                BARRINGTON D. PARKER,
                PETER W. HALL,
                            Circuit Judges.
    __________________________________________

    Margaret Tehan,

                       Plaintiff-Appellant,

                       v.                                                  09-2109-cv

    Sacred Heart University,

                Defendant-Appellee,
    __________________________________________

    FOR APPELLANT:                     Margaret Tehan, pro se, Guilford, CT.

    FOR APPELLEE:                      James M. Sconzo and Jonathan C. Sterling, Jorden Burt LLP,
                                       Simsbury, CT.

             Appeal from a judgment of the United States District Court for the District of

    Connecticut (Dorsey, J.).
          UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

DECREED that the judgment of the district court be AFFIRMED, and that Tehan’s motions to

submit new evidence be DENIED.

          Appellant Margaret Tehan, pro se, appeals the judgment of the district court granting

Sacred Heart University’s [“SHU”] motion for summary judgment as to her claims for gender

discrimination and retaliation under Title VII of the Civil Rights Act of 1964 (“Title VII”), 42

U.S.C. § 2000e et seq. Tehan also appeals the district court’s dismissal, pursuant to D. Conn.

Local Rule 41(b), of her sexual harassment claim, following a reported settlement, as well as the

court’s denial of her motion for an evidentiary hearing on her allegation that SHU altered

exhibits during the proceedings below. Finally, Tehan moves in three separate motions to submit

nearly fifty additional exhibits that were not considered by the district court. We assume the

parties’ familiarity with the underlying facts, the procedural history of the case, and the issues on

appeal.

I.        Summary Judgment Motion

          We review orders granting summary judgment de novo and focus on whether the district

court properly concluded that there was no genuine issue as to any material fact and the moving

party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson, L.L.P.,

, 300 (2d Cir. 2003); Republic Nat’l Bank v. Delta Air Lines, 

, 46 (2d

Cir. 2001). In determining whether there are genuine issues of material fact, we are “required to

resolve all ambiguities and draw all permissible factual inferences in favor of the party against

whom summary judgment is sought.” Terry v. Ashcroft, 

, 137 (2d Cir. 2003)

(internal quotations omitted).


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        After a thorough review of the record, we conclude that the district court properly granted

summary judgment to SHU on Tehan’s gender discrimination and retaliation claims. Separate

and apart from her sexual harassment allegations (as to which the district court denied SHU’s

motion for summary judgment), the court correctly found that Tehan had failed to demonstrate

that she suffered an adverse employment action as related to her discrimination claim, as the

incidents she identified constituted, at most, a “mere inconvenience or an alteration of [her] job

responsibilities.” Galabya v. New York City Bd. of Ed., 

, 640 (2d Cir. 2000). In

addition, assuming that Tehan set forth a prima facie case of retaliation, she failed to raise a

genuine issue of material fact as to whether SHU’s proffered non-discriminatory reason for her

termination—i.e., its decision to outsource its website design functions—was a pretext for

retaliation. Accordingly, we affirm the district court’s grant of summary judgment to SHU on

these claims for the reasons articulated by that court.

II.     Dismissal of Tehan’s Complaint

        The district court properly dismissed Tehan’s complaint, and thus her remaining sexual

harassment claim, pursuant to D. Conn. Local Rule 41(b). The record makes clear that the

district court timely sent notice to both parties that, following their reported intention to settle,

the case would be dismissed if closing papers were not filed by a certain date, and the court even

extended that deadline on Tehan’s request. Nevertheless, Tehan failed to file closing papers by

that date, and while we are sympathetic to the fact that she suffered a medical emergency on the

day the papers were due, her failure was not because of her emergency. The settlement offer is

still open to her and she continues to refuse to accept the terms she had agreed to.




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III.   Discovery Rulings

       Tehan asserts that the district court erred by denying her request for an evidentiary

hearing on her allegation that SHU altered her exhibits, and further erred by rejecting her claim

that this alteration occurred. These arguments are unavailing. We review a district court’s

discovery orders for abuse of discretion, see Indep. Order of Foresters v. Donald, Lufkin &

Jenrette, Inc., 

, 937 (2d Cir. 1998), and will reverse such a ruling only if “the action

taken was improvident and affected the substantial rights of the parties,” Goetz v. Crosson, 

, 805 (2d Cir. 1994). Similarly, we review the district court’s denial of a motion for an

evidentiary hearing for abuse of discretion. See Zappia Middle East Constr. Co. v. Emirate of

Abu Dhabi, 

, 253 (2d Cir. 2000) (“The district court’s denial of an evidentiary

hearing is subject to an abuse of discretion standard of review.”).

       Here, the district court appropriately concluded that SHU had neither the means nor the

opportunity to alter the exhibits in question, which, upon our review, are not particularly relevant

to Tehan’s substantive claims. Moreover, that Tehan submitted more than one thousand pages to

the district court in support of her argument, and that SHU filed an equally comprehensive reply,

demonstrates that the court did not err in rejecting her request for an evidentiary hearing; it is

clear the court had more than sufficient materials upon which to render a decision.

       We have considered Tehan’s remaining arguments on appeal and conclude that they have

no merit.

IV.    Motions to Submit New Evidence

       Tehan seeks to introduce nearly fifty exhibits that were not considered below. We have

held that, where a party seeks to introduce evidence on appeal that was not submitted to the


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district court, and is thus not part of the record on appeal, he or she must satisfy the requirements

of Fed. R. App. P. 10(e)(2) by demonstrating that such evidence was erroneously or accidentally

omitted from the record. See Leibowitz v. Cornell University, 

, 592 n.4 (2d Cir.

2006) (declining to supplement the record with new evidence where appellant did not show that

it was mistakenly omitted from the record on appeal). Tehan cannot satisfy this standard. There

is no indication that she ever attempted to submit her new exhibits to the district court or that

they were submitted but then mistakenly omitted from the record on appeal. Her motions are

therefore denied.

       For the foregoing reasons, the judgment of the district court is hereby AFFIRMED, and

Tehan’s pending motions are DENIED.



                                              FOR THE COURT:
                                              Catherine O’Hagan Wolfe, Clerk




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